COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794 and the regulations promulgated under those statues. A hearing was held on May 7 and 9, 2008, at the Offices of Catuogno Reporting Services in Springfield, MA. Those present for all or part of the proceedings were:

Parent

Student

Elizabeth Deluca Parent friend/ Advocate

Debbie Benoit Principal, Ware Middle School

Cynthia Hardaker-Benoit Grade 5 Teacher, Ware Middle School

Jonathan Byerley Grade 5 Teacher, Ware Middle School

Walter Craig Grade 5 Teacher, Ware Middle School

Rania Dbiesi Special Education Teacher, Ware School

Teresa Dooley-Smith Speech-Language Pathologist – Consultant

Mary Birks Director of Special Education, Ware Public Schools

Alisia St. Florian Attorney for Ware

Lindsay Byrne Hearing Officer

The official record of the Hearing consists of: documents submitted by the Parent marked P-1 and P-2; documents submitted by the School marked S-1 through S-37; and approximately nine hours of recorded oral testimony and argument. The School submitted a written closing statement on May 28, 2008. The Hearing Officer extended the original due date for submission of written closing arguments to June 13, 2008, to permit the parent additional time to complete her argument. The Parent did not submit a closing argument by that date and the record closed.

Issue

1. Whether the October 2006 to October 2007 and October 2007 to October 2008 Individualized Education Plans, and the February 7, 2008 Amendment to the October 2007 Individualized Education Plan, developed by the Ware Public Schools are reasonably calculated to provide a free, appropriate public education to Salvatore?

2. If not, does Salvatore require an out-of-district placement in a specialized, intensive, language-based setting in order to make effective educational progress?

Summary of the Evidence

The pertinent facts are not in dispute and may be briefly summarized.

1. Salvatore is a thirteen year old student who has just completed the 6 th grade. He is described as a hard worker, cooperative, responsible, participatory and attentive (Hardaker-Benoit, Byerley, Craig). He has received special education services through the Ware Public Schools since his first grade year.2 Special education services were targeted at improving Salvatore’s skills in reading decoding, reading fluency, spelling, phonological processing, rapid naming, and written expression. Despite solidly average cognitive potential Salvatore also demonstrated weaknesses in memory and processing speed. Progress reports and evaluations noted that Salvatore’s reading comprehension skills were within age and grade expectations. This pattern of skills and weaknesses supported diagnoses of dyslexia/ language learning disorder. Academic support and remediation services were delivered in an inclusion setting. Salvatore also participated in pull-out physical and occupational therapy for low muscle tone. (Parent; S-3)

2. The last accepted Individualized Education Plan for Salvatore ran from October 2006 to October 2007 during his 5 th grade year. (S-8) Pursuant to that IEP Salvatore received 1 hour and 25 minutes of special English Language instruction daily in the general classroom, and one half hour each of physical and occupational therapy weekly in a pull out setting. Cynthia Hardaker-Benoit described Salvatore’s 5 th grade class as “team taught”. For the daily English Language instructional block of 84 minutes, the 22 students in the class were divided into 4 groups. Ms. Hardaker-Benoit, the regular education teacher led one group; the Special Education teacher, the Title I Reading Specialist, and the instructional paraprofessional each led a group. Each teacher concentrated on a particular aspect or skill. Ms. Hardaker-Benoit concentrated on word attack strategies and story comprehension; the special education teacher concentrated on written language skills; the Title I teacher worked with students to develop deeper comprehension skills and on writing with story grammar marker; the paraprofessional oversaw computerized reading programs, silent reading, audio books, homework checks, etc. The student groups rotated through each work station each instructional period. Social studies instruction emphasized cooperative, project-based assignments and interpretation of primary source materials. For that 84 minute period there were two instructors; the regular education teacher and the paraprofessional. Ms. Hardaker-Benoit testified that Salvatore was compliant and attentive and always gave his best effort. He was graded alongside the regular education students without modifications receiving B’s and C’s. He followed the regular 5 th grade curriculum, and did not need any additional services to progress effectively. Ms. Hardaker-Benoit did not notice any difference in Salvatore’s performance or comprehension due to the different instructional group size or teacher qualifications in the English Language and Social Studies blocks. She was not surprised that Salvatore scored in the proficient range in both English and Math sections of the 5 th grade MCAS as he had passed the 4 th grade MCAS and a proficient grade was consistent with his in-class performance. (Hardaker-Benoit)

Jonathan Byerly, the 5 th grade special education teacher, testified that Salvatore was an enthusiastic learner, had strong and appropriate social connections, was comfortable in both large and small groups, did not appear to need any assistance or modifications in Science or Math, and made effective progress in the general 5 th grade curriculum. (Byerly; see also S-29)

3. At the request of the parent, Dora Campbell conducted a comprehensive speech and language evaluation of Salvatore in December 2006 (P-1). She had evaluated Salvatore at least twice previously (S-3) and wrote that he “continues to display profound language deficits in phonological awareness, narrative development, expository discourse, language reasoning and written grammar/ syntax.” (P-1) On standardized tests administered by Ms. Campbell Salvatore scored within the average or expected range for oral expression, phonological awareness, spelling, following directions, narrative development, and several subtests of naming speed. He earned below average scores on the naming objects and naming colors subtests of the Naming Speed Test and on the Test of Word Reading Efficiency. Ms. Campbell recommended that Salvatore continue with the Lindamood-Bell “LIPS” and “Seeing Stars” programs. She recommended daily, individual reading/ language instruction as well as direct speech-language services. Further, she recommended that he be placed in an “alternative language-based setting” where language skills would be targeted and taught in all subject areas. (P-1) There is no indication in this record that as part of this evaluation Ms. Campbell spoke with any of Salvatore’s teachers, reviewed his progress reports or IEPs, or observed Salvatore in any setting other than the testing situation.

4. The Team reconvened on February 9, 2007, to consider Ms. Campbell’s evaluation. The P-+arent requested that Salvatore be placed at the Curtis Blake Day School, a private special education facility in Springfield, MA. The Team found that Salvatore was making effective educational progress in the 5 th grade with the services and modifications then in place pursuant to the accepted 2006-2007 IEP. The Team also found that Salvatore had completed the Lindamood programs. Therefore the Team declined to make any changes to the IEP as a result of Ms. Campbell’s evaluation. (Birks; S-7) The Parent then rejected the school’s refusal to place Salvatore at Curtis Blake.

5. As part of a resolution process, Ms. Campbell was invited to observe Salvatore and his school program. She conducted a nearly full school day observation on June 7, 2007. She wrote that the “integrated regular education classroom program does not appear to be appropriate… at this time.” She again recommended placement in a highly structured language intensive program with a small homogenous group and a low student-teacher ratio. She recommended that Salvatore receive direct services from a speech-language pathologist. Ms. Campbell also recommended that Salvatore receive “services” through the summer to prevent regression. She did not specify which type of “services”. (P-2)

6. The Team reconvened on June 19, 2007 to consider Ms. Campbell’s observation report and recommendations. The Team concluded that Salvatore was making effective educational progress in his inclusion placement and that the Curtis-Blake program would be overly restrictive for him. The Team did not agree with Ms. Campbell’s conclusion that Salvatore needed summer services or direct speech language therapy but offered both in order to address the parent’s concerns. The parent declined both the individual speech-language therapy and summer services as she was not comfortable with the designated service provider. (Birks: S-5)

7. On July 31, 2007, the parent requested a hearing seeking an order placing Salvatore at the Curtis-Blake School. (Administrative Record) Salvatore continued in an inclusion program at the Ware Middle School throughout the 2007-2008 school year.

8. The Team reconvened on October 29, 2007, and developed an IEP continuing Salvatore’s inclusion special education services in the areas of reading, written language and organizational skills. The IEP provided for: 60 minutes per day of specialized English language instruction; 15 minutes per day of homework assistance with a special education teacher before school; one-half hour per week of direct occupational therapy and consultation by the physical therapist. The parent did not respond to the proposed IEP and it is presumed to be rejected. (S-4; Parent)

9. Ware Public Schools, in an attempt to find common ground with the parent, engaged Teresa Dooley-Smith to conduct a comprehensive evaluation and record review and to develop a set of recommendations for the parties to follow. The parent did not consent to an evaluation of the student. Ms. Dooley-Smith then conducted a record and program review in December 2007 and January 2008. She digested and summarized the reports of 19 evaluations and observations conducted between June 2003 and December 2007. Ms. Dooley-Smith wrote a detailed report of her findings for the team and testified at the hearing (see S-3). She noted that there was general agreement among the evaluators and over time that Salvatore had a significant language learning disability, executive functioning weakness and fine motor difficulties. The evaluators also agreed that Salvatore would be best served in a language based educational environment, with targeted strategies to improve his reading and written language skills, accommodations for his disabilities in other academic content areas, assistive technology to address his executive functioning weaknesses, and direct services for his fine motor needs. After reviewing Salvatore’s IEPs Ms. Dooley-Smith testified that Ware had provided the recommended environment, teaching strategies, modifications and accommodations, and related services to Salvatore. She noted that there was documented growth in Salvatore’s reading and language skills, as well as his gross and fine motor abilities. She also noted that he achieved unmodified passing grades and that evaluation instruments over time showed progress in basic literacy and numeracy skills. IEP progress notes also demonstrated acquisition of targeted skills (3-14, 29, 13, 12, 31) (S-3). Ms. Dooley-Smith pointed out that only one evaluation in the record, that of Dora Campbell, recommended an “alternative” placement for Salvatore. Ms. Dooley-Smith analyzed the specific programmatic characteristics and instructional interventions recommended by Ms. Campbell, and concluded that Ware was providing each one with the singular exception of an “alternative setting”. (See: P-1 and S-3; in particular compare: S-3 p.28, S-8, S-10, S-4, S-1 and P-1). Ms. Dooley-Smith testified that the October 2007 to October 2008 IEP developed by Ware contained appropriate special education services, instructional modifications and educational accommodations as recommended by evaluators and would assure Salvatore’s continued educational progress in the least restrictive setting. She recommended continued work on reading fluency and specialized computer programs and games to improve Salvatore’s weak visual memory and processing. She also recommended an assistive technology evaluation to explore supports for Salvatore’s laborious handwriting. (Dooley-Smith; S-3)

10. The Team reconvened on February 5, 2008, to review Ms. Dooley-Smith’s report. The Team discussed additional evaluations in the areas of assistive technology and physical therapy. The parent accepted the physical therapy evaluations and declined the assistive technology evaluation. Ware then offered to let Salvatore use a school provided laptop computer at school for note taking and written assignments, and at home for homework completion. The laptop was accepted and put into use immediately. The Team made no other substantive changes to the IEP it had proposed in October 2007 as a result of Ms. Dooley-Smith’s report. Following the Team meeting, Ware sent an IEP Amendment to the parent. She rejected the “inclusion placement” on March 15, 2008.

11. Walter Craig, Salvatore’s 6 th grade English Language Arts teacher during the 2007-2008 school year, testified that Salvatore was in a class of 23 students, 6 of whom had identified special needs. Mr. Craig co-taught the class with Rania Dbiesi, a certified special education teacher. He testified that he was aware of the modifications and accommodations on Salvatore’s IEP. Regular and special education students follow the same 6 th grade curriculum. In general, according to Mr. Craig, the ELA class was intensively language based and used multi-modal instructional techniques, including: projects, cooperative learning groups, video/audio presentations, and read alouds, in addition to written language exercises. Salvatore also had direct specialized instruction for reading fluency with Ms. Dbiesi.

Mr. Craig testified that at the beginning of the 6 th grade year Salvatore was functioning overall at a 4 th grade level. At the end of 6 th grade Salvatore’s English language skills were in the average range for a 6 th grade student. He had good comprehension in reading tasks, as well as good organization and mechanics in writing. Mr. Craig noted that written production had been the area of greatest difficulty for Salvatore, but that he had improved significantly since he began using the computer for his written work. Homework precipitated significant anxiety for Salvatore, though he had the academic skills to complete the assignments. Salvatore earned regular grades of C+, and placed in the middle of the class. Mr. Craig testified that Salvatore was capable of, and did, meet the demands of the regular 6 th grade curriculum, appropriately sought and accepted assistance when necessary and had good, age appropriate social skills and relationships. He did not recommend making any changes to Salvatore’s placement or special education service delivery. (Craig)

12. Ms. Dbiesi was the 6 th grade team inclusion teacher. She was present in all Salvatore’s regular education academic classes every other week. A special education paraprofessional assumed that role in alternate weeks. Ms. Dbiesi worked in a small group with Salvatore during the English language class to improve his reading fluency. In addition she met with Salvatore daily outside of class to work on Dibels, an intensive oral reading instructional program. She noted significant improvement in Salvatore’s academic functioning and test scores throughout the 6 th grade year. (See also: S-37; Birks) Ms. Dbiesi testified that Salvatore can function and perform to expectations in the regular 6 th grade curriculum. He is nearly independent in written assignments, particularly since beginning use of the computer. He does not need any additional service or alternate placement to make academic or social progress. (Dbiesi; see also S-81)

13. Ms. Dooley-Smith observed the 6 th grade co-taught English Language class in January 2008. She testified that it provided all the recommended characteristics of the multisensory, language based instruction universally recommended as appropriate for Salvatore: small group learning, multi-modalities, segmenting language, scaffolding, visual organizers, rephrasing, repetition, revisiting prior instruction, and organizational supports. She also testified that the teachers provided positive emotional support to Salvatore and handled his anxiety “masterfully”. (Dooley-Smith)

14. The parent agreed that, after a difficult 5 th grade year, Salvatore was comfortable in school and had made good progress in the 6 th grade. She testified, however, that she believed the curriculum was “dumbed down” for him and that he needs a smaller classroom with fewer students and teachers specializing in his disability in order to have appropriately challenging work. (Parent)

Findings and Conclusions

There is no dispute that Salvatore is a student with special learning needs as defined by 20 U.S.C. § 1401 et seq ., and M.G.L. c.71B. The issue presented here is whether Ware Public Schools is providing special education services that are closely tailored to meet Salvatore’s unique needs and to permit him to make meaningful educational progress in the least restrictive setting. After careful consideration of the entire evidentiary record and the arguments of both parties, it is my determination that Ware has, through its proposed 2007-2008 IEP and Amendment, been offering Salvatore the free, appropriate public education to which he is entitled. Further, I find that Ware has in fact been delivering special education services to Salvatore throughout the 2006-2007 and 2007-2008 school years that meet the IDEA’s procedural and substantive requirements. My reasoning follows:

The programming recommendations of both school based and private evaluators beginning in June, 2003, and continuing through June 2007 are consistent. After identifying Salvatore’s primary difficulties with language based academic tasks such as reading and written expression, executive functioning skills such as visual processing and memory, fine motor tasks associated with producing written documents, and anxiety, the evaluators also made nearly uniform recommendations. As summarized by Ms. Dooley-Smith these included: a language based instructional setting; direct special education support to promote reading fluency, phonological awareness and narrative development; use of tools such as story grammar marker to develop written language skills; small group, multisensory presentations of new material; computer assisted reading/ writing instruction; occupational and physical therapy to strengthen gross, fine and visual-motor skills; appropriate instructional, performance and production modifications to the regular setting and curriculum to permit Salvatore to participate in all grade level activities; and positive emotional support and feedback. According to Ms. Dooley-Smith Ware has developed and implemented a series of Individualized Educational Plans for Salvatore that provide for the recommended setting and services. Furthermore, Salvatore has demonstrated steady growth in all areas while participating in the special education programs and services accepted by the Parent. There is no credible or reliable evidence to the contrary in the record.

Turning to the 2007-2008 IEP and Amendment at issue in this hearing, I find that it provides a setting and a set of services that meet the recommendations of all the evaluators in the record. It also meets the recommendations of Salvatore’s 5 th and 6 th grade teachers who are in the best position to assess his day-to-day functioning and progress in the educational setting. Similarly, I rely heavily on the expert opinion of Ms. Dooley-Smith, whom I found to be thorough, candid and sympathetic, that the 2007-2008 IEP and Amendment are appropriate for Salvatore. She noted, as do I, that one evaluator, Dora Campbell, recommended an “alternative” setting for Salvatore. (See P-1) However neither Ms. Campbell’s findings, in particular the results she reported on standardized assessment measures, nor the other recommendations in Ms. Campbell’s report, adequately support the need for an out-of–district placement.3 Indeed, all other recommendations listed by Ms. Campbell in her December 2006 report were either specifically included in Salvatore’s IEP, delivered as part of his ongoing 5 th and 6 th grade programs, or observed by Ms. Campbell or Ms. Dooley-Smith in action. (Compare P-1 and P-2; S-3; Dooley-Smith) Removal from public school programs is appropriate only when the nature or severity of the student’s special education needs is such that she or he is not making or cannot make meaningful progress in the regular education setting even with specialized services, modifications and accommodations. 20 U.S.C. § 1412(5)(A); 603 CMR 28.06(1)(f). The record here demonstrates clearly that Salvatore is achieving steady academic, social, and motor growth in a nearly full inclusion program. There is no credible evidence in this record that Salvatore requires a segregated educational setting in order to continue to make effective educational progress. I find, therefore, that the Parent has not carried her burden of proving by a preponderance of the evidence that Ware failed to provide a free appropriate public education to Salvatore during the 2007-2008 school year, and cannot provide one to him in Ware through the life of the 2007-2008 IEP. Thus I do not examine the Parent’s request for and proposed placement in The White Oak School.

Order

The 2007-2008 Individualized Education Plan developed by Ware Public Schools and the Amendment issued in February 2008, are reasonably calculated to provide a free, appropriate public education to Salvatore.

The record contains no information other than the Parent’s request for a specific named school (originally Curtis-Blake School, now, due to age progression, White Oak School) about any potentially appropriate “alternative” placement.

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